ROBERTS v SMITH [1998] NSWCA 189

ROBERTS v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and POWELL JJA and FITZGERALD AJA 9 November 1998, 19 November 1998

[1998] NSWCA 189

PERSONAL injury — industrial accident — quantum appeal — findings of trial judge insufficient and inadequate — new trial ordered

Priestley JA I agree with Fitzgerald AJA. Powell JA I agree with Fitzgerald AJA.

Fitzgerald AJA This is a quantum appeal from the District Court. The appellant, the plaintiff below, exaggerated his claim and was an unreliable witness. As happens all too often in such circumstances, in the resultant confusion the trial judge made findings which were insufficient and inadequate. In my opinion, a new trial is unavoidable.

The Plaintiff was aged 43 years when he was injured on 27 May 1995. He had an excellent work record, and, at the date of the accident, had been a salesman at Wayne Byrne's Discounts, a retailer, since 1988. The appellant claimed to have received injuries to his buttock, lower back and neck in the accident, but the trial judge found that the appellant did not receive a neck injury and was not satisfied that his other physical injuries prevented him from being "fit for the job of an electrical and associated goods salesman"; ie, (it seems) at the date of trial. It is not clear to what extent that conclusion was related to his Honour's doubt, notwithstanding the evidence, concerning "the extent to which the [appellant's] pre-accident work required lifting...".

It is not in dispute that the appellant was summarily dismissed on 13 October 1995, less than 5 months after the accident. The letter of dismissal, which was in the form of a reference, was in the following terms:

"Mr William Roberts was employed by our company for 10 years from October 1985 to October 1995. Even though Bill was never given a title he virtually managed the Electrical Sales part of our Business for 10 years. Bill's main asset was in his special sales knowledge of electrical appliances, but he also took on the responsibility of stock ordering, banking, and all other duties involved in a retail store. Bill's honesty and reliability could never be questioned and I would recommend him for any future sales position he may seek.